AM: Thanks for discussing your debut novel with me, Anton. It’s titled Al-Tounsi and involves U.S. Supreme Court justices who are laboring over a case about an Egyptian detainee held on a military base in the Philippines. How did you come up with this premise for a novel?

AP: I was interested in the intersection between contemporary legal and political issues and the personal lives of the justices. I was particularly impressed by the ways in which the writ of habeas corpus has been used (and suspended) throughout U.S. history.

The Great Writ is a heroic call to responsibility—a demand made by the judiciary for the executive to live up to its obligations to imprisoned individuals. While it has obvious political and social ramifications, it also has philosophical ones. It encourages moral and psychological reckoning: what are our responsibilities to others?

I was excited about writing a novel where two strains—the political and the personal—overlap and blend. I realized that if I fictionalized the important 2008 Guantanamo Bay case Boumediene vs. Bush—by changing key events, decisions and characters—I could use it as the basis for a novel about the Court that explores all my interests.

Anton Piatigorsky

AM: How did you decide to change directions and write about the law? Did this case just jump out at you? Your previous writings address a wide variety of subjects but not, that I can tell, law.

AP: I came to the law, strangely enough, through religion. I’ve long been interested in how religion functions, and especially in the ways that secular systems mimic religious ones. When I started reading about American law and the U.S. Supreme Court, I saw those institutions as a part of an Enlightenment era secular religion. From this perspective, law is a system of rituals, codes and writings that helps establish an identity for a community, a set of shared values and beliefs, and a way for people to function within the world. I found that fascinating. It inspired all sorts of questions.

What are the general beliefs about people and the world that lie beneath the American legal system? How are those beliefs enacted in cases, courts, and legal writings? How do they play out in the rituals of the Court? How do the justices of the Supreme Court —who are, in some ways, high priests of the legal world — reconcile conflicts between their personal beliefs and the foundational beliefs of the legal system they guide?

The fictional stories I wanted to tell about justices’ lives grew out of these general questions. Those questions also led me into an investigation of the main case before them.

AM: One of the most fascinating parts of the book, to me, is the Afterword, which consists of the concurring opinion of the fictional Justice Rodney Sykes.

AP: I have always loved novels of ideas, when a character’s emotional journey overlaps with their complex thoughts and beliefs. Whenever that type of fiction really works — as it does with Dostoyevsky’s The Brothers Karamazov — the character’s philosophy or worldview stands alone as a work of non-fiction. And so the novel becomes part fiction, part critical thought. It functions as a critique on ideas that circulate in the real world.

That’s what I hoped to achieve for Justice Rodney Sykes’s formal opinion in the novel’s Afterword. I wanted Rodney to reach a powerful critique of basic tenets of the American legal system. I wanted him to address what our responsibilities are (or aren’t) towards others in the legal system, and the problems with that system’s fundamental faith in individual actors. In his concurrence, Rodney takes an unorthodox and unlikely stance for a Supreme Court Justice, but that’s what makes it a work of fiction. A novel can be the perfect forum to discuss how a real person might come to a radical decision, and how that decision might revolutionize their thoughts and actions.

AM: Who are your favorite living writers?

AP: I particularly admire J.M. Coetzee and Alice Munro. I think about their works often while I’m writing and editing my own.

Coetzee has written several fantastic “novels of ideas.” Both Diary of a Bad Year and Elizabeth Costello manage to incorporate far-reaching critiques into their larger stories about characters, and they do so while using imaginative formal techniques. I also love Coetzee’s cold and austere style in his less overtly intellectual books. They’re cleanly written, shockingly honest, and endlessly compelling.

Alice Munro—although it’s almost a cliché to praise her at this point—shows remarkable insight into her characters, gradually revealing their motivations, resentments and surprising decisions without ever erasing their fundamental mysteries as people. Her stories are complex formally, but in such a quiet way that I often don’t notice their structures until I’ve read them a few times. Her writing is a great model for how to show characters’ lives and decisions with efficiency and imagination while maintaining mystery.

AM: Do you intend to continue in the novel form in your own writing?

AP: Absolutely. I would love to write more legal fiction, as well. I’ve spent years learning about the law, but know that I’ve barely scratched the surface. There are so many potentially interesting legal stories. I’m also at the early stages of a new novel, which is not explicitly about law, but does feel like an outgrowth of Al-Tounsi in certain ways.

AM: I worked for a state Supreme Court justice for over three years, and I agree: there are many interesting legal stories out there, and I’ve found that facts are often stranger than fiction.

AP: It must be fascinating to work on the diverse cases that roll through a court. I can only imagine how many potential stories you and other lawyers, judges and court workers can recall—ideas for a million novels and movies and plays.

I think legal stories are particularly exciting for fiction because they distill big questions into concrete human situations and personalities. The giant subjects of guilt and innocence, love and betrayal, responsibilities towards others as opposed to ourselves, community or self-reliance, greed, jealousy and ambition all play out in specific facts and events, in the concrete details of a case. It’s just like in a novel. And since the American legal system is, in my mind, an application of an entire Enlightenment, philosophic worldview, these test cases and stories also pose huge philosophical, ethical and moral questions. It’s no coincidence some of the best novels ever written involve detailed legal plots.

AM: That reminds me of something Justice Holmes once said: “Law opens a way to philosophy as well as anything else.” But it sounds as if you and I would go further and say it might open a way better than many other things do.

AP: Law is like applied philosophy; It puts general ideas to the test in the real world. If a philosophy remains theoretical it never really touches what it means to live it, inside it. The answers theoretical philosophy provides are always tentative.

A huge inspiration for my novel was the work of the late French philosopher, Emmanuel Levinas. While Levinas’s writing is often arcane and difficult to get through, I find his thinking to be a powerful and searing indictment of basic Enlightenment principles. While I was writing Al-Tounsi, I used Levinas’s insights—directly—to help me construct Justice Sykes’s final concurrence. It was hugely inspiring to find a concrete way to use this philosophy I have long loved. All the questions and problems I was interested in exploring were present in this genuine legal situation, in the constitutional habeas corpus case, Boumediene vs. Bush, on which I based my fictional case of Al-Tounsi vs. Shaw.

This post is adapted from a law review article that may be downloaded here(citations available in the original).

Sir Matthew Hale and Sir William Blackstone explained that judicial opinions in England traditionally were a source of unwritten law, or lex non scripta, derived from custom and read from the bench but not transcribed in official reports or indexed in a formal corpus. Judicial opinions began as an oral medium, not a written record. They were considered evidence of what the law was, but not the law itself.

From the thirteenth to the fifteenth century, opinions were often written down, in French, and compiled in Year Books. Lawyers began citing opinions—some written, some unwritten—in their arguments before the courts, although there was no systematized mode of citation. As early as the fifteenth century, lawyers produced abridgements, or digests, to review the state of the law across England. These sketchy compilations summarized and classified opinions and could be referenced in the courtroom as authority for particular propositions. During the fifteenth and sixteenth centuries, a comprehensive scheme of methodical and widespread adherence to written precedent emerged gradually by slow degrees. However, not until the sixteenth and seventeenth centuries did judges and litigants treat opinions as authoritative and binding in a manner that resembled the modern sense of precedent. The publication of Sir Edward Coke’s Institutes of the Lawes of England over the course of nearly two decades during the early seventeenth century provided direction for both jurists and attorneys who wished to substantiate their arguments with concrete holdings. Still there were no certified court reporters or verbatim transcriptions; the enterprise of publishing reports or digests was often personal and selective, insofar as reporters often chose to record only cases they liked and to disregard cases they disliked.

From approximately 1600 to 1800, the British House of Lords enjoyed supreme appellate jurisdiction over cases in common-law and equity courts. During that time, the House of Lords did not publish reports of its decisions, seriatim or otherwise. Most cases were ultimately determined by intermediate appellate courts, including the Exchequer Chamber, the Court of Common Pleas, and the King’s Bench, which regularly issued seriatim opinions that were transcribed by reporters. Prior to American independence from Great Britain, appeals from colonial courts went before the Privy Council in England. The Privy Council reached decisions by majority vote but issued those decisions as unified pronouncements, regardless of dissenting views. Because all decisions of the Privy Council were subject to the King’s review, and the King, the site and symbol of the law or body politic, could not articulate simultaneous, contradictory positions, the appearance of unanimity within the Privy Council was paramount.

In its early years, after the adoption of the Judiciary Act of 1789, the United States Supreme Court (“the Court”), following the practice of English common-law courts—specifically the King’s Bench—typically rendered decisions in the form of per curiam and seriatim opinions. The near obligatory practice of rendering written opinions was an American innovation and a departure from the English custom of residual orality. The fact that the United States Constitution was written perhaps necessitated the textual documentation of judicial opinions in books, digests, and reports.

During the tenure of Chief Justice Oliver Ellsworth (1796–1800), the third Chief Justice of the Court, seriatim opinions became less common and were abandoned during the tenure of Chief Justice John Marshall (1801–1835), who orchestrated consolidated opinions among the justices, much to the chagrin of Thomas Jefferson. Justices who concurred with the prevailing rationale no longer authored a separate opinion to express their agreement. Justice William Johnson, a Jeffersonian Republican, was the notable exception, authoring nearly half of the dissents that were produced by members of the Court during his tenure on the bench. Chief Justice Marshall, for his part, authored most of the Court’s majority opinions, which were issued with the phrase “opinion of the Court” to lend the impression that the justices spoke with one voice. Collegiality and consensus-building must have been a high priority because, after work hours, the justices resided and dined together in a small boardinghouse on Capitol Hill, away from their families, where court conflicts could have incited personal quarrels. Abandoning the seriatim mode and dissenting opinions also quickened the publication process; over a quarter of the cases decided by opinion between 1815 and 1835 were published in no more than five days.

The period late in Chief Justice Marshall’s tenure to approximately 1905 involved the rise of dissenting justices. Chief Justice Marshall himself began to author dissents as the Court increasingly decided cases through majority rather than unanimous opinions. Dissents proliferated during the mid-nineteenth century and into the twentieth century. Justice John McLean and Justice Benjamin Curtis authored memorable dissents in Dred Scott v. Sandford. Forty-eight years later, Justice Oliver Wendell Holmes Jr.’s three-paragraph dissent in Lochner v. New York became one of the most influential legal writings in American history. Blackstone’s conviction that opinions were evidence of law but not actually law continued to some extent throughout the nineteenth century, yet it had been diminishing since the mid-eighteenth century. The notion of “caselaw,” or the idea that judicial opinions constituted law, did not gain currency until the twentieth century. Today it is mostly accepted without question or qualification.

The twentieth century ushered in the era of the “Great Dissenter,” a label that has been conferred on Justice Holmes and Justice John Marshall Harlan. By the 1940s, most cases involved separate opinions. Dissents and separate writings are now common. A jurist’s reasoning and argument typically enjoy precedential effect, but historically, under the English tradition of the common law, the judgment of the opinion was authoritative, and later courts could disregard the analysis from which that judgment followed. The results of an opinion, in other words, took priority over its reasoning.

As improbable as it sounds, someone has written “a love letter to the teaching of law.” At least that’s what Stephen B. Presser sets out to do in Law Professors, which is less pedagogical than it is historical and biographical in approach. If not a love letter, it’s at minimum a labor of love about the genealogy of American legal education, for which Presser is admirably passionate.

Even more improbable is how a book about three centuries of law professors could be enjoyable. Yet it is. Every rising law student in the United States should read it as a primer; experienced legal educators should consult it to refresh their memory about the history and purpose of their profession.

Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Prizker School of Law and the legal-affairs editor of Chronicles. He’s a leading voice of what is sometime referred to as paleoconservatism, who maintains that our political dysfunction derives in part from the methods and jurisprudence of law professors. His book might be called a diagnosis of our social ailments, the cure being the repurposing of legal education.

Beneath his silhouettes—two involve fictional figures (Lewis Eliot and Charles Kingsfield) while the other twenty deal with actual flesh-and-blood teachers—lies a structural dualism that enables him to classify his subjects under mutually exclusive heads: those who believe in higher law and divine order, and those who believe that laws are merely commands of some human sovereign. The former recognize natural law, whereby rules and norms are antecedent to human promulgation, whereas the latter promote positivism, or the concept of law as socially constructed, i.e., ordered and instituted by human rulers.

These binaries, Presser says, explain the difference between “common lawyers and codifiers,” “advocates of Constitutional original understanding and a living Constitution,” and “economic analysts of law and Critical Legal Studies.” Here the dualism collapses into itself. The common-law method is at odds with originalism in that it is evolutionary, reflecting the changing mores and values of local populations in a bottom-up rather than a top-down process of deciphering governing norms. Constitutionalism, especially the originalism practiced by Justice Scalia, treats the social contract created by a small group of founding framers as fixed and unamendable except on its own terms. The law-and-economics movement as represented by Judge Posner and Judge Easterbrook is difficult to square with natural law because it’s predicated on cost-benefit analysis and utilitarianism. In short, it’s a stretch to group the common law, originalism, and the law-and-economics movements together, just as it’s strange to conflate legislative codification with critical legal studies. Distinctions between these schools and traditions are important, and with regard to certain law professors, the binaries Presser erects are permeable, not rigid or absolute.

Presser’s narrative is one of decline, spanning from the late eighteenth century to the present day. It begins with Sir William Blackstone, “the first of the great modern law professors.” Presser may overstate the degree to which Blackstone propounded a common-law paradigm that was frozen or static and characterized by biblical principles. The influence of Christianity and moral principles is unmistakable in Blackstone’s Commentaries on the Law of England, especially in its introductory and more general sections, but the vast majority of the treatise—which was intended for an audience of young aspiring lawyers, not scholars or jurists—describes basic, mundane elements of the British legal system and organizes judicial principles and decisions topically for ease of reference. Presser is right that, more than anyone else, Blackstone influenced early American lawyers and their conception that the common law conformed to universal, uniform Christian values, but Jefferson’s more secular articulation of natural law as rooted in nature had its own adherents.

Other teachers included here are James Wilson (after whom Hadley Arkes has named a fine institute), Joseph Story (whose commitment to natural law is offset by his federalist and nationalist leanings), Christopher Columbus Langdell (whose “original and continuing impact on American legal education is unparalleled”), Oliver Wendell Holmes Jr. (whose career as a professor was short and undistinguished), John Henry Wigmore (whose “sometimes idol” was Holmes), Roscoe Pound (“a figure of extraordinary talent”), Karl Llewellyn (the “avatar” of the legal-realist movement), Felix Frankfurter (“no longer the God-like figure at Harvard”), Herbert Wechsler (“the anti-Holmes”), Ronald Dworkin (who reformulated the theories of John Rawls), Richard Posner (the subject of William Domnarski’s recent biography), Antonin Scalia (“best known for his bold conservative jurisprudence”), and several still-living contemporaries.

Presser is particularly hard on Holmes, relying on Albert Alschuler’s harsh and often careless assessments of the Magnificent Yankee. He charges Holmes with embracing the view that judges were essentially legislators and suggests that Holmes was “policy-oriented.” Although this portrayal is popular, it is not entirely accurate. In fact, Holmes’s jurisprudence was marked not by crude command theory (the Benthamite version of which he adamantly rejected) but by deference and restraint. Presser himself recalls Alschuler in claiming that Holmes “was prepared to approve of virtually anything any legislature did.”

So was Holmes a policy-oriented judge legislating from the bench, or did he defer to legislatures? Undoubtedly the latter. Only once during his twenty years on the Massachusetts Supreme Judicial Court did he hold legislation to be unconstitutional. As a Supreme Court Justice, he almost programmatically deferred to state law. “[A] state legislature,” he said, “can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States,” adding that courts “should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.” Rather than imposing his personal policy preferences, Holmes believed that a judge’s “first business is to see that the game is played according to the rules whether [he] like[s] them or not.” If Holmes’s conception of judicial restraint and the Fourteenth Amendment had carried the day, the holdings in Roe v. Wade, Planned Parenthood v. Casey, Lawrence v. Texas, and Obergefell v. Hodges, among others, would not have occurred.

Presser admittedly doesn’t like Holmes, but he is polite about it. There’s a charming sense of collegiality in his assessments of his contemporaries as well. He boasts of his own traditionalism without hesitating to call Duncan Kennedy and Catharine MacKinnon “brilliant.” He disagrees with his opponents without denigrating their intelligence and expresses gratitude to faculty whose politics differ radically from his own. He describes a variety of disciplinary schools, including critical race theory, which don’t appeal to him. And he gives some unjustly neglected thinkers (e.g., Mary Ann Glendon) the attention they rightly deserve while some overrated thinkers (e.g., Cass Sunstein) receive the attention they relish.

President Obama is held up as the quintessential modern law professor, the type of haughty pedagogue responsible for the demise of the rule of law and the widespread disregard for constitutional mandates and restrictions. Yet law professors as a class weren’t always bad; in fact, they once, according to Presser, contributed marvelously to the moral, spiritual, and religious life of America. Presser hopes for a return to that era. He wishes to restore a proper understanding of natural law and the common-law tradition. His conclusion takes a tendentious turn that reveals his abiding conservatism. Those who agree with him will finish reading this book on a high note. His political adversaries, however, may question whether they missed some latent political message in earlier chapters.

But isn’t that the nature of love letters—to mean more than they say and say more than they mean? Presser’s love letter to law teaching is enjoyable to read and draws attention to the far-reaching consequences of mundane classroom instruction. He’s a trustworthy voice in these loud and rowdy times.

Seth Vannatta of Morgan State University recently coauthored a piece with me on Friedrich Nietzsche’s influence on U.S. Supreme Court Justice Oliver Wendell Holmes Jr. The piece appeared in the fall 2016 issue of UMKC Law Review.

Richard Posner is one of the few legal minds to have noticed the affinity between the philosophies of Holmes and Nietzsche. Dr. Vannatta and I hope to expand the circles of interest in this topic.

Our article demonstrates how Holmes’s pragmatism both comports with and departs from Nietzsche’s existentialism. Holmes’s pragmatism shares with Nietzsche’s existentialism a commitment to skepticism, perspectivalism, experiential knowledge, and aesthetics, as well as an abiding awareness of the problematic nature of truth and the fallibility of the human mind.

We suggest that Holmes was familiar with Nietzsche’s writings and that the two thinkers turned away from Christian ethics and glorified the life struggle in distinctly evolutionary terms. Both men celebrated the individual capacity to exercise the will for purposes of personal autonomy, greatness, and creative or aesthetic achievement. Nietzsche, however, did not share Holmes’s belief in the pragmatic potential of meliorism, which marks the distinction between their notions of fate.

The thinking of Nietzsche and Holmes converges in the person of Ralph Waldo Emerson, who was a manifest influence on both Holmes and Nietzsche and whose thinking on fate and power, inflected as it is by aesthetic pragmatism, shapes our understanding not only of Holmes and Nietzsche in isolation but also of Holmes and Nietzsche as paired, ambitious philosophers concerned about the role of fate and power in human activity.

The article is available for download here in the SSRN database for those who are interested in reading more about this curious relationship between two intellectuals whose ideas shaped society during the 20th century.

This review originally appeared here in the Los Angeles Review of Books.

William Domnarski is probably right when he writes that Richard Posner, like his hero Oliver Wendell Holmes Jr., “seemed destined for a literary life.” Holmes modeled himself on Emerson; he was the class poet at Harvard and earned his reputation as a thoughtful if controversial man of letters who could write with panache.

Posner, who majored in English at Yale, modeled himself on Holmes. “Holmes,” Posner declared in a missive, “is the greatest jurist, at least of modern times, because the sum of his ideas, metaphors, decisions, dissents, and other contributions exceeds the sum of contributions of any other jurist of modern times.” Posner’s writing similarly stands out for its flair and confidence.

Both men extended their influence beyond their legal opinions and have contributed to philosophy, becoming provocative historical figures in their own right. Posner has correctly invoked Holmes as a pragmatist, even if Holmes avoided the designation and referred to William James’s pragmatism as an “amusing humbug.” A member of the short-lived Cambridge Metaphysical Club that birthed pragmatism in the 1870s — and which also included James and C. S. Peirce — Holmes at least imbibed the pragmatism that was, so to speak, in the Boston air. Posner’s pragmatism, however, is only tangentially related to the thinking of Peirce and James, and so one hesitates to call it pragmatism at all.

In a move that must irritate University of Miami professor, Peirce supporter, and Richard Rorty critic Susan Haack, Posner distinguishes his variety of pragmatism — what he calls “everyday pragmatism” — from philosophical pragmatism. His thesis is most pronounced in his book Law, Pragmatism, and Democracy(2005). The quotidian pragmatism that inheres in the law is, in his view, practical and forward-looking and based on “reasonableness.”

It’s not always clear how this mode of pragmatism intersects with, or diverges from, the so-called traditional or classical pragmatism, though it differs markedly — and refreshingly — from what Haack labeled “vulgar Rortyism,” that Frenchified variety of structuralism that dispensed with truth as a meaningful category of discourse.

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One suspects, given his outsized ego, that Posner delights in having placed his stamp on legal pragmatism, thereby forcing perplexed students in philosophy departments to come to terms with his ideas and square them with not only Peirce and James but also John Dewey, George Herbert Mead, and W. V. Quine.

Posner’s self-importance can be charming or off-putting. You might see him as an erudite, spirited dandy playing the part of flamboyant intellectual; or, more cruelly, as a bitter sophist bent on celebrating his own idiosyncratic views and maliciously dismissing his opponents with callous words and harsh indictments. Certainly his gratuitous rhetorical attacks on the late Antonin Scalia warrant this latter take.

And yet the man speaks with a high, soft voice; loves and spoils his cat; and spends most of his time reading and writing. It’s hard to condemn such things.

Posner is on record as having fancied himself as not just equal to, but more intelligent than, Learned Hand and Henry Friendly — two giants of American law — because he considered himself more informed about economics. This is surprising, chiefly because his self-assessment occurred before he became a judge.

As a judge, Domnarski tells us, “he could seek to persuade his new judicial colleagues to follow him, so as to further shape the law as he saw it — in his own image.” He continues to shape everything, it seems, in his own image, including, perhaps, Domnarski’s biography, which he read both in draft form and as a final manuscript.

One wonders how heavily he edited his own biography — how much latitude he enjoyed in fashioning his story. He sat for interviews and emailed with Domnarski, which wouldn’t be unusual or improper had he not been a primary source of his own legend, as he certainly appears to have been. As a young man, Posner exercised his authority as president of Harvard Law Review to include certain content over the objections of his peers. Might he have done this with his biographer?

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Posner, an only child, is used to promoting himself, and his acquaintances at different stages of his life often note his arrogance. As early as high school, he would say “the Poze knows,” and called himself “the mighty one,” writing in yearbooks that he “welcomes you as a High Priest of Posner Worship.” You can write this off as playful, but you can’t write off the fact that he cites himself in cases more than any other judge — though not by name, Domnarski points out, as if to acquit him of unseemly motivations.

An editor of a peer-reviewed journal once complained that Posner had cited himself too often in a paper, to which Posner rejoined that self-citation was necessary because he had produced most of the relevant literature on the subject. “The Poze knows,” the footnotes might have read. Another time an exasperated Posner wrote to editors at Cambridge University Press, “Don’t you know who I am?” — the same remark that landed Henry Louis Gates Jr. in hot water under different circumstances.

Although Domnarski connected with over 200 people to piece together this book, Posner’s personal opinion of himself seems to control the narrative and crowd out contrary valuations that critics may have offered. It’s not that Posner’s accomplishments and reputation are unearned. He’s worked hard to become perhaps the best-known and most prolific federal circuit judge in our nation’s history, and his talents and learning are unquestionable and impressive. The person who emerges in these pages is exceptional at what he does, but difficult to like. He graduated first in his class at Harvard Law School but was not popular. He remains good with ideas — just not with people. He’d rather disseminate brilliant theories than keep them to himself, even when they’re in bad taste or poor form. Whether that’s a virtue or vice depends upon one’s priority for manners and decorum.

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Posner’s most remarkable and admirable quality, it seems to me, is his ability — even willingness — to accept constructive criticism in stride. He doesn’t take evaluations of his work personally, and he invites opposition to fine-tune and improve his ideas. He instructs his clerks to criticize his draft opinions line by line so that he can perfect his rationale. “[W]e should want” and “insist upon,” he wrote to a colleague, “challenge and criticism; the rougher the better; for one of the great dangers of achieving eminence is that people are afraid to criticize you and then you end up inhabiting a fool’s paradise.”

Posner has referred to himself as a “monster,” a characterization he’s also reserved for Wagner, Tolstoy, Nietzsche, Wittgenstein, Proust, Kafka, and Michelangelo. The term thus seems like an odd form of self-approbation rather than regret or self-loathing. It accords with his grand notion that he is “a Promethean intellectual hero,” not just some federal judge who happens to be well read.

Posner remains “a writer first and a lawyer second.” He’s correct that, as he told one correspondent, “the modern practice of law does not offer a great deal of scope for the poetic imagination.” Law schools have divided faculty into fields and sub-fields, and specialists in different areas of practice are increasingly unable to speak to one another in a common idiom or with shared vocabularies. Posner studied at Yale under Cleanth Brooks, who directed Posner’s research on William Butler Yeats, so he knows a thing or two about the poetic imagination and memorable expression.

But maybe the law is not about poetic imagination. Maybe it requires a prosaic and mechanical mind that can dispassionately and without fanfare adjudge the soundness of legal arguments presented by the parties to a case. If so, Posner may have been better suited for a different profession, one he would have loved and within which he could have more appropriately flaunted his creativity. Being an English professor, though, would’ve been out of the question; he dismisses much of what English literature departments regard as scholarship as “bullshit.” He uses the same word to describe work in the legal professoriate, of which he was once a seminal figure. By age 30, in fact, he had achieved the rank of full professor at the University of Chicago Law School. He cultivated the image of an iconoclastic rabble-rouser willing to subject all human activity to cost-benefit analysis. He popularized the law-and-economics movement and eagerly imparted that economic efficiency supplied the right methodology for describing and delineating common-law judging, which involved practical resolutions to concrete problems. The doctrinaire Posner of this period drifted far from the Communist roots of his mother. More recently, though, he’s alleged that capitalism is a failure and moved decidedly to the left on key issues.

Perhaps because of his haughtiness, the law can seem boring and routine without him. There’s something to be said for the color and liveliness he brings to his office, and for his belief that “the law really is a very limited field for a person of literary bent.” Domnarski’s treatment may seem deferential, but it doesn’t cover up Posner’s naked, sometimes brutal honesty. Posner is willing to say what others aren’t, and able to say it more eloquently.

If, as Domnarski avers, Posner considers the average lawyer to be like Bartleby or Ivan Ilych — fancifully tragic figures — then he must disdain or pity those lawyers who come before him in the courtroom and submit their briefs for his relentless scrutiny. The 1987 Almanac of the Federal Judiciary states that lawyers who argued before Posner found him to be “arrogant, impatient, dogmatic,” and “opinionated,” and that he “dominates arguments” and “cross-examines lawyers as if they were 1-Ls in a Socratic exchange with a professor.” The man is important, no doubt, but never learned how to play nicely.

Ever the Darwinian, Posner has suggested that great books prove their merit over time in the competition of the marketplace; perhaps his reputation will too.

My latest book, scheduled for release next week through Bucknell University Press, is about United States Supreme Court Justice Oliver Wendell Holmes Jr. The book continues my work at the intersection of law and the humanities and should interest scholars of literary theory, American literature, jurisprudence, and pragmatism.

I argue in the book that Holmes helps us see the law through an Emersonian lens by the way in which he wrote his judicial dissents. Holmes’s literary style mimics and enacts two characteristics of Ralph Waldo Emerson’s thought: “superfluity” and the “poetics of transition,” concepts ascribed to Emerson and developed by literary critic Richard Poirier. Using this aesthetic style borrowed from Emerson and carried out by later pragmatists, Holmes not only made it more likely that his dissents would remain alive for future judges or justices (because how they were written was itself memorable, whatever the value of their content), but also shaped our understanding of dissents and, in this, our understanding of law. By opening constitutional precedent to potential change, Holmes’s dissents made room for future thought, moving our understanding of legal concepts in a more pragmatic direction and away from formalistic understandings of law. Included in this new understanding is the idea that the “canon” of judicial cases involves oppositional positions that must be sustained if the law is to serve pragmatic purposes. This process of precedent-making in a common-law system resembles the construction of the literary canon as it is conceived by Harold Bloom and Richard Posner.

There is a long tradition of scholarship regarding Emerson’s pragmatism. Among those who have written about Emerson’s pragmatism are Russell B. Goodman, Giles Gunn, Poirier, Cornel West, Joan Richardson, Levin, and James M. Albrecht. Even earlier Kenneth Burke noted that “we can see the incipient pragmatism in Emerson’s idealism” and that “Emerson’s brand of transcendentalism was but a short step ahead of an out-and-out pragmatism.”

Goodman analyzed Emerson as “America’s first Romantic philosopher,” the counterpart to Wordsworth, Coleridge, and Carlyle whose idealism would influence William James and later John Dewey and Stanley Cavell.

Gunn examined while contributing to the critical renaissance of American pragmatism in the 1990s; he suggested that Emerson cast a long shadow “at the commencement of the pragmatist tradition in America” and that Emerson belonged to a family of writers that included Henry James, Kenneth Burke, John Dewey, Frank Lentricchia, and others.

To reach this conclusion Gunn adopted a more diffuse definition of pragmatism that went beyond the philosophical tradition of Peirce, Dewey, George Herbert Mead, Sidney Hook, Morton White, Richard Bernstein, John McDermott, and Richard Rorty. He attended to aesthetically charged political texts presented not only by Emerson but also by W.E.B. DuBois, James Baldwin, Flannery O’ Connor, Elizabeth Hardwick, Poirier, Cornel West, Clifford Geertz, and Stanley Fish. Gunn left behind James’s “somewhat restricted focus on the nature of knowledge and the meaning of truth” and turned instead to literary and cultural works that affected social issues.

Gunn’s focus on the social indicates a debt to Dewey, and his valuation of Emerson must be considered in a Deweyian context. That Emerson is a pragmatist is somewhat implied or tacit in Gunn’s account; his discussion is not about what elements of Emersonian thought evidence pragmatism but about how Emerson influenced Henry James Sr. and his sons William and Henry, who in turn influenced a host of other writers; how Emerson spearheaded an American tradition of strong poets and transmitted optimism to subsequent writers; and how Emerson cultivated aesthetic rhetoric and anticipated progressive sociopolitical thought.

If Gunn is a bridge between classical philosophical pragmatism and neopragmatism of the aesthetic variety, Poirier was neither classical philosophical nor neopragmatist, eschewing as he did the logics and empiricism of Pierce and James as well as the political agitating of some of Gunn’s subjects. Poirier concentrated above all on the literary and cultural aspects of pragmatism: not that these aspects are divorced from politics, only that their primary objective is aesthetic or philosophical rather than partisan or activist.

Poirier sought to “revitalize a tradition linking Emerson to, among others, Stein, and to claim that new directions can thereby be opened up for contemporary criticism.” He, like Gunn, was frank about his attempt to expand the pragmatist canon that purportedly began with Emerson. “As Emerson would have it,” he explained, “every text is a reconstruction of some previous texts of work, work that itself is always, again, work-in-progress.”

This constant, competitive process of aesthetic revision gives rise to a community of authors whose mimetic activities gradually form and reform a canon that resembles and functions like the constantly reformulating legal principles in a common-law system: “The same work gets repeated throughout history in different texts, each being a revision of past texts to meet present needs, needs which are perceived differently by each new generation.” Within this revisionary paradigm, Poirier heralded Emerson as the writer who “wants us […] to discover traces of productive energy that pass through a text or a composition or an author, pointing always beyond any one of them.”

Cornel West explored the radical implications of pragmatism to democracy in the works of Emerson, Peirce, William James, Dewey, Sidney Hook, C. Wright Mills, W.E.B. DuBois, Reinhold Niebuhur, Lionel Trilling, Roberto Unger, and Michel Foucault. Unlike the interpreters of pragmatism discussed above, West extended the pragmatist canon from America to the European continent and professed a radical preoccupation with knowledge, power, control, discourse, and politics. Like the previous interpreters, however, he acknowledged the family resemblances among disparate pragmatist thinkers and their ideas and so, in Nietzschean or Foucaultian fashion, undertook a “genealogy” of their traditions.

Recent work by Colin Koopman has run with the historicist compatibilities between genealogy and pragmatism to articulate novel approaches to cultural studies. Although the topic exceeds the scope of this short post, genealogical pragmatism might serve as a promising methodology for future studies of the common-law system.

“My emphasis on the political and moral side of pragmatism,” West explained, “permits me to make the case for the familiar, but rarely argued, claim that Emerson is the appropriate starting point for the pragmatist tradition.” West’s emphasis on pragmatism as a “new and novel form of indigenous American oppositional thought” has an interesting valence with Oliver Wendell Holmes Jr.’s new and novel form of dissenting from the majority and plurality opinions of the U.S. Supreme Court. Holmes’s jurisprudence was oppositional, in other words, although not radical in the sense that West means.

West credited Emerson with enacting “an intellectual style of cultural criticism that permits and encourages American pragmatists to swerve from mainstream European philosophy,” and Holmes’s dissents likewise moved American jurisprudence away from its British origins—especially from Blackstonian paradigms of the common law—and towards an oppositional paradigm modeled off theories of Darwinian struggle.

Richardson borrows a phrase from Darwin, “frontier instances,” which he borrowed from Francis Bacon, to trace the continuity of pragmatism in American life and thought. Her argument “proceeds by amplification, a gesture mimetic of Pragmatism itself, each essay illustrating what happened over time to a form of thinking brought over by the Puritans to the New World.” She treats pragmatism as a uniquely American philosophy and more impressively as an organism that develops through natural selection: “The signal, if implicit, motive of Pragmatism is the realization of thinking as a life form, subject to the same processes of growth and change as all other life forms.” Her diverse subjects signal the definitive expositors of pragmatism for their respective eras: Jonathan Edwards, Emerson, William and Henry James, Wallace Stevens, and Gertrude Stein.

Richardson’s Emerson is a visionary who retained a ministerial or spiritual philosophy but who repackaged it in less conventionally Christian terms than his Puritan, evangelical predecessors. She explains that Emerson imperfectly replicated the work of Old Testament prophets and New Testament apostles to make it apprehensible in the rapidly changing American context. Her latest book, Pragmatism and American Experience, endeavors to untangle the knot of pragmatism and transcendentalism, searching Cavell for illumination regarding the perceived mismatch between these two prominent schools of American philosophy.

Albrecht interrogates the term “individualism” and describes its currency within a pragmatic tradition that runs from Emerson, William James, and Dewey to Kenneth Burke and Ralph Ellison. Unlike the aforementioned scholars of Emerson, who “do not resolve the question of how far, and to what purpose, one can claim the ‘pragmatic’ character of Emerson’s thought,” Albrecht comes close to a practical answer that is made more insightful and understandable in light of Holmes’s judicial writings that appear in media (opinions and dissents) that control rather than merely influence social patterns.

Albrecht strikes a balance between radical and conservative characterizations of pragmatism, “which gets accused of […] contradictory sins: it optimistically overestimates the possibilities for reform, or it succumbs to a conservative gradualism; it is too committed to a mere, contentless method of inquiry that undermines the stability of traditional meanings, or its emphasis on existing means places too much weight on the need to accommodate existing customs, truths, and institutions.” The same could be said of the common-law tradition that Holmes adored and about which he authored his only book, The Common Law, in 1881.

Albrecht never mentions the common law, but there is a mutual radiance between his analysis of Emerson and the longstanding notion of the common law as the gradual implementation and description of rules by courts, aggregated into a canon by way of innumerable cases and in response to changing social norms. Nor does Albrecht mention Holmes, whose Emersonian contributions to pragmatism only affirm Albrecht’s contention that “there are important benefits to be gained not by calling Emerson a pragmatist, […] but by reading Emerson pragmatically—by applying the fundamental methods and attitudes of pragmatism in order to highlight the ways in which similar attitudes are already present in, and central to, Emerson.”

One such benefit involves the sober realization that Holmes’s Emersonian pragmatism cannot be or ought not to be distorted to mean an equivalence with contemporary and coordinate signifiers such as “Left” and “Right,” “Liberal” and “Conservative,” for there are as many self-proclaimed “Conservative pragmatists,” to borrow a term from the jurist Robert H. Bork, as there are Cornel Wests: thinkers “concern[ed] with particularity—respect for difference, circumstance, tradition, history and the irreducible complexity of human beings and human societies—[which] does not qualify as a universal principle, but competes with and holds absurd the idea of a utopia achievable in this world” (Bork’s words).

Due to the long line of scholars celebrating and studying Emersonian pragmatism, Albrecht is able to remark, “The notion that Emerson is a seminal figure or precursor for American pragmatism is no longer new or controversial.” He extends and affirms a scholarly tradition by depicting “an Emerson whose vision of the limited yet sufficient opportunities for human agency and power prefigures the philosophy of American pragmatism.”

More important than Albrecht’s being the latest link in a chain is the clarifying focus he provides for examining an Emersonian Holmes by attending to two ideas that comport with common-law theory: first, that Emerson prefigured James by walking a line between monism and pluralism and by emphasizing the contingency and complexity of natural phenomena; and second, that Emerson considered ideas as derived from past experience but open to creative revision in keeping with present circumstances.

Regarding the first, Albrecht seeks to undermine a prevailing assumption that Emerson was some kind of absolute idealist, as even William James suggested. Albrecht’s argument is based on the position that Emerson rejected essentialisms and envisioned a cosmos consisting of competing forms and ideas that grow and evolve because of their competition.

Regarding the second, Albrecht seeks to show that although Emerson imagined himself as breaking from past forms and ideas, he also regarded the past as indispensable to our understanding of the present and as necessary for generating and cultivating creative dynamism; the past is inescapable and must be utilized to shape the present, in other words. “All attempts to project and establish a Cultus with new rites and forms, seem to me vain,” Emerson preached in this vein in his Divinity School address, adding that all “attempts to contrive a system are as cold as the new worship introduced by the French to the goddess of Reason[.] […] Rather let the breath of new life be breathed by you through the forms already existing.”

Albrecht promises an Emerson who recounts the mimetic and derivative nature of creativity and genius; yet his portrait of Emerson is incomplete without Poirier, who describes an Emersonian stream of pragmatism flowing with idiomatic, resonate, sonorous, and figurative language. Poirier’s notion of superfluity is central to understanding Holmes’s Emersonian role within a common-law system where “[e]very several result is threatened and judged by that which follows” (Emerson, “Circles”). In the common-law system according to Holmes, a “rapid intrinsic energy worketh everywhere, righting wrongs, correcting appearances, and bringing up facts to a harmony with thoughts” as they are permutated in case precedents (Emerson, “Divinity School Address).

Poirier’s notion of Emersonian superfluity involves a thinker’s “continual effort to raise himself above himself, to work a pitch above his last height,” and to push the syntactical and intellectual boundaries so as to avoid having “the same thought, the same power of expression, to-morrow” (Emerson, “Circles”). Superfluity is an attempt to realize in language the restive impulse to drive forward and reenergize, to prophesy and transcend. It characterizes language that is designed to “stir the feelings of a generation” (Holmes, “Law in Science and Science in Law”), or less grandiosely to compensate rhetorically for the inability of the written word to realize the extraordinary power of an idea or emotion.

Oliver Wendell Holmes Jr. can seem politically enigmatic in part because he was a jurist, not a legislator. He was no conservative, but he was no progressive, either. Misconstruing and mislabeling him only leads to the confusion and discrediting of certain views that conservatives and libertarians alike seriously ought to consider. One must not mistakenly assume that because Lochner-era Fourteenth Amendment due process jurisprudence favored business interests, Holmes stood against business interests when he rejected New York’s Fourteenth Amendment due process defense. (I have avoided the anachronistic term “substantive due process,” which gained currency decades after Lochner.)

Holmes resisted sprawling interpretations of words and principles—even if his hermeneutics brought about consequences he did not like—and he was open about his willingness to decide cases against his own interests. As he wrote to his cousin John T. Morse, “It has given me great pleasure to sustain the Constitutionality of laws that I believe to be as bad as possible, because I thereby helped to mark the difference between what I would forbid and what the Constitution permits.”

All labels for Holmes miss the mark. Holmes defies categorization, which can be a lazy way of affixing a name to something in order to avoid considering the complexity and nuances, and even contradictions, inherent in that something. “Only the shallow,” said Justice Felix Frankfurter, “would attempt to put Mr. Justice Holmes in the shallow pigeonholes of classification.”

Holmes was not conservative but more like a pragmatist in the judicial sense. His position on judging is analogous to William James’s suggestion that a person is entitled to believe what he wants so long as the practice of his religious belief is verifiable in experience and does not infringe upon the opportunity of others to exercise their own legitimate religious practices. James exposited the idea of a “pluralistic world,” which he envisioned to be, in his words, “more like a federal republic than like an empire or a kingdom.” Holmes likewise contemplated the notion of a federal republic in his majority opinions and dissents.

Oliver Wendell Holmes Jr. turned forty in 1881. The publication of The Common Law that year gave him a chance to express his jurisprudence to a wide audience. This marked a turning point in his career. Over the next year, he would become a professor at Harvard Law School and then, a few months later, an associate justice of the Massachusetts Supreme Judicial Court.

The trauma of the Civil War affected his thinking and would eventually impact his jurisprudence. Leading up to the War, he had been an Emersonian idealist who associated with such abolitionists as Wendell Phillips. As a student at Harvard, he had served as Phillips’s bodyguard. He later enlisted in the infantry before joining the Twentieth Massachusetts, a regiment that lost five eighths of its men. He was wounded at the Battle of Ball’s Bluff in October of 1861, when he took a bullet to his chest; the bullet passed through his body without touching his heart or lungs. In September of 1862, he was wounded at the Battle of Antietam, a bullet having passed through his neck. In May of 1863, at Marye’s Hill, close to where the battle of Fredericksburg had taken place six months earlier, Holmes was shot and wounded a third time. This time the bullet struck him in the heel, splintered his bone, and tore his ligaments; his doctors were convinced that he would lose his leg. He did not, but he limped for the rest of his life.

He emerged from the War a different man. He was colder now, and more soberminded. “Holmes believed,” Louis Menand says, “that it was no longer possible to think the way he had as a young man before the war, that the world was more resistant than he had imagined. But he did not forget what it felt like to be a young man before the war.” And he learned that forms of resistance were necessary and natural in the constant struggle of humans to organize their societies and to discover what practices and activities ought to govern their conduct. The War, accordingly, made him both wiser and more disillusioned. In light of his disillusionment, he reflected the general attitudes of many men his age.

But not all men his age shared his penetrating intellect or his exhilarating facility with words; nor did they have his wartime experience, for most men who experienced what he had during the war did not live to tell about it. Certainly no one besides Holmes could claim to have enjoyed such intimate and privileged access to the Brahmin, Emersonian culture of New England before the War, and he more than anyone was equipped to see the continued relevance of that culture to the present. He knew there were things the War could not destroy and varieties of thought that could endure.

The above text is an excerpt from my essay “Pragmatism on the Shoulders of Emerson: Oliver Wendell Holmes Jr.’s Jurisprudence as a Synthesis of Emerson, Peirce, James, and Dewey,” published in The South Carolina Review, Vol. 48, No. 1 (2015). To view the full essay, you may download it here at SSRN or visit the website of The South Carolina Review.

Seth Vannatta is an Associate Professor and Interim Department Head in the Department of Philosophy and Religious Studies at Morgan State University. He earned a PhD in Philosophy at Southern Illinois University Carbondale (2010), where he lived from 2006-2010. Before attending SIUC, Seth taught grades 5 through 12 in the History, English, and Religion Departments at Casady School. He served as head varsity volleyball coach for ten years and head varsity soccer coach for three years. He also served as chair of the history department for two years. He has a BA from Colorado College in History (1995) and a Master’s in Liberal Arts from Oklahoma City University (2002). His wife, Rachel, has a BA from Northwestern University (2006), an Master’s in Counselor Education from Southern Illinois University (2010) and is a doctoral candidate in Counselor Education at George Washington University.

Kant, Immanuel. “What is Enlightenment?” in The Philosophy of Kant Immanuel Kant’s Moral and Political Writings. Edited by Carl Friedrich. New York: The Modern Library, 1949.

_____________. “Of the Relation of Theory to Practice in Constitutional Law” in The Philosophy of Kant Immanuel Kant’s Moral and Political Writings. Edited by Carl Friedrich. New York: The Modern Library, 1949.

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